唆讼、吓财、挠法:清代官府眼中的讼师  

Soliciting Action,Extorting Property,Frustrating the Law:The Pettifogger from the Eyes of Qing Government

作　　者：霍存福[1] 

机构地区：[1]吉林大学法学院,吉林长春130012

出　　处：《吉林大学社会科学学报》2005年第6期129-137,共9页Jilin University Journal Social Sciences Edition

基　　金：国家社会科学基金项目(05BFX009)

摘　　要：讼师唆讼、吓财、挠法,几成定论。从清代情况看,讼师有唆讼者,但大部分案件来源于被动收受而出策,所谓“唆讼”不全部是事实;讼师受财取利,多属主动要价,且价码较高,但这与机制上的不存在同业组织纪律约束及缺乏官府的有组织的管理有关,又与市场供求有关,从“义利”分野指责其惟利是图,名之以“赃”、“贿”,不符合事实,也难合情理;讼师颠倒是非、混淆曲直以挠法的情形,确实较普遍,有的甚至很严重,讼师们应对此负责任;讼师具有“不着点墨而生杀人命”的“刀笔”之能,但我们应关注的是,讼师“刀笔”功夫的使用是否符合案情实际,对准确定罪量刑起了何种作用。The Pettifoggers soliciting Action, Extorting property, frustrating the law were maybe a final conclusion. According to the Qing Dynasty, some pettifoggers had solicited the action, but many of actions belonged to accept passively. It can be concluded that “Soliciting Action” by pettifogger was a truth not at all. The circumstance that the Pettifogger received lucre and obtained the behoof mostly pertained to ask for the property actively and the price was high. But it related that the pettifogger＇ s mechanism had not the inhabitation about the organizing discipline in their vocation, lacked the organic management by government in Qing Dynasty, also related to the market＇ s supply and demand. So, rebuking the pettifogger putting the behoof at first and then regarding it as spoils and bribe do not correspond with the fact and reason. The thing that the pettifoggers confused and confounded right and wrong to frustrate the law were really rifeness, sometimes were severity in ancient. The pettifoggers would answer for the truth. The pettifoggers had the ability of “writings of indictments” that could decide the people＇ s life and death not using pleading. But we should pay attention to this fact whether the use of “writings of indictments” by pettifoggers accorded to the details of a case, operated on punishment fitting the crime.

关 键 词：清代 讼师 唆讼 吓财 挠法 官府 同业组织 案件来源 纪律约束 市场供求 

分 类 号：D929[政治法律—法学]